February 24, 2009

Second Amendment Absent in Supreme Court Gun Ruling

In spite of its recent support for an individual right to bear arms, the Supreme Court today adopted an expansive reading of the federal law that bans possession of firearms by those who have been convicted of felonies or of "a misdemeanor crime of domestic violence."

The meaning of the phrase about misdemeanors was the issue in United States v. Hayes, decided by a 7-2 vote in a decision available here.

West Virginia resident Randy Hayes was prosecuted under that section of the law in 2005. The predicate crime that triggered the law in his case was a 1994 state conviction on charges of battery, where his victim was his wife. But Hayes claimed that since the crime was simple battery, and was not specific to battery against a family member, it should not have triggered the firearm possession law. Hayes lost at the district court level, but the U.S. Court of Appeals for the 4th Circuit reversed, finding that the law comes into play only when the predicate crime has "as an element a domestic relationship." In other words, even though Hayes' victim actually was his wife, the appeals court said it does not count as a predicate crime because the crime was not specific to domestic violence.

Justice Ruth Bader Ginsburg, writing for the majority, said the 4th Circuit's approach would "frustrate Congress' manifest purpose" in including domestic violence crimes among the crimes that would result in loss of firearms. "If the Fourth Circuit were right in its analysis of the controlling legislation," Ginsburg said in announcing the ruling from the bench, "Congress' enactment would have been a dead letter in the majority of states from the very moment of its passage." Congress added the domestic violence provision in 1996.

In dissent, Chief Justice John Roberts Jr., joined by Justice Antonin Scalia, said that "right off the bat," the law should be read to require that a domestic relationship be an element of the predicate offense. Roberts also said that implementing the majority's view will entail "significant problems," requiring prosecutors to research the relationships in past crimes, rather than simply going by the category of the crime.

The case drew interest in part as a test of the strength of the right to bear firearms in the wake of D.C. v. Heller, last year's landmark declaration of an individual right to bear arms. The Second Amendment Foundation filed a brief in the Hayes case, urging the Court to adopt the narrower interpretation and to allow states leeway in defining crimes.

But, as Ohio State University law professor Doug Berman points out on his Sentencing Law and Policy blog, neither Heller nor the Second Amendment played a role in Hayes. "The Second Amendment and Heller do not even get mentioned by the dissenters, even though the majority's ruling would seem to provide a green light to jurisdictions looking for pretty easy ways to functionally work around the rights supposedly championed in Heller."

The Brady Center to Prevent Gun Violence applauded the decision. "In its first gun case since the landmark Heller decision, the Court wisely upheld this reasonable restriction, said center president Paul Helmke. "Today's ruling is the right one for victims of domestic abuse and to protect law enforcement officers who are our first responders to domestic violence incidents."

Comments

1. If Ohio State's Mr. Berman is afraid that this gives sleazy public servants a "work-around" to deny individual rights, his fear is well founded, and I share it.

2. The original argument was apparently not about how just a misdemeanor offense can carry the weight of a felony or about how using this was a violation of civil rights. The decision was about how the District Court interpreted and about the grammatical construction of the law.

3. It's an old trial lawyer trick to claim "domestic violence" in initial divorce filings to get a convenient order of protection along with possession of the house and custody of the kids.